Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL
Subject_2 SUMMER SESSION.

John Haddoway
v.
- Inglis and William Somervell

1676 and 1677:

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1676,December 12.—In an action for maills and duties, pursued by John Haddoway, of some lands beside Douglas, compeared one Inglis and Mr William Somervell, and competed upon another infeftment; wherein possession being admitted to Haddoway's probation, he, for proving his infeftment was clad with possession before their right, produced, 1mo, A discharge of the feu-duty from the Marquis of Douglas, superior. The Lords found, at the advising, this alone was not a sufficient proof of possession. 2do, He produced a holograph discharge, granted by him to the tenant possessor of the land of his year's rent.

The Lords found such discharges were not probative of any man's possession, because it did not prove quoad datum, and might have been recently granted after Inglis's right; but the Lords allowed him to adminiculate the date of it by the tenant's oath.*

Whereupon the tenant compearing, the other party declared they resiled from his oath, and deferred it to Mr Haddow's own oath. It was contended, that could not be, since the oath was deferred to the tenant for astructing the reality of the date of the discharge, as it bore by the Lords and not by the party; and so could not be altered or resiled from, or deferred back to Haddow's oath. However, Mr Haddow being content, on oath asserted the discharge was of a true date, and was then subscribed, and he got the rent. But they put in another interrogatory, viz. if it was then delivered to the tenant, or ever became his evident. He refused to answer thereto, as not pertinent.

However the Lords, on a bill given in by Inglis, ordained him to be examined on that interrogatory; and a day being assigned to him to appear, he failed, being hindered by the great storm; so the term was circumduced against him, and the decreet hastily extracted the day after he came to town. What straitened him was, that after he had subscribed the discharge, he told the tenant he might have use for it to astruct his possession, and therefore would keep it. Quæritur, if this will equivalently amount to a delivery per fictionem brevis manus, since there was no simulation.

Inglis farther craved to be preferred, because he had an inhibition executed against Haddow's author before his right, and thereon had a reduction depending. Which the Lords receiving hoc loco by way of exception, we were forced to propone, 1mo, against the inhibition, that the executions were false, and offered to improve them. 2do, That they designed not the party inhibited his dwelling-house. The Lords permitted them to take up their executions as to that part and mend them, they abiding at it. 3tio, That it was still null, because it did not bear that a copy of the letters of inhibition were affixed and left at the Market-cross, as is done in hornings and other such solemnities. Answered,—Not essential. The President called it a new point; and the Lords, before answer, ordained both parties to produce either practicks, if any were, or executions of inhibitions, to see whether that custom be more frequently used and inserted or omitted; and Haddow having produced ten or twelve he had borrowed from messengers and others, they all bore a copy left at the Market-cross. See the point of law urged from many parallels in the information.

The Lords demur what to find as to bygone executions, whether that informality shall annul them or not; but, pro futuro, on the 20th day of December, 1676, they made an act, (and yet I find it not inserted in the sederunt books,) that in all time coming the executions of the publication of inhibitions shall bear a copy to have been affixed on the Market-cross, otherwise they shall be null.

The President's manner is, when any new point occurs to be decided, he runs over all the practicks new and old, but particularly since the King's restoration in 1661, to see if he can find it either decided already, or any parallel or contingent help; which speaks his indefatigableness.

Advocates' MS. No. 520. folio 270.

* And thus, in March 1677, Sir Jo. Cunygham advised the renewing of Mr Jo. Ramsay, minister at Markinch, his holograph disposition to David Ramsay, because it would not prove quoad datam, and so would be presumed to be done in lecto, unless it were adminiculated by persons that saw it and read it before his sickness in his liege poustie; and the proving it to be his hand-write is not enough.

1677,November 29.—In the foresaid action mentioned supra, [No. 520.] between John Haddow, and Somervell, and Inglis, decreet having been given forth against the said John, upon a circumduction of the term, for his not compearing to depone anent the delivery of the discharge; he presented a bill of suspension; which being debated before Reidfurd, and reported by him, the Lords reponed John Haddow again to his oath against the said decreet, because he was impeded vi majore and by the storm from coming in; and that the decreet was disconform to his oath, decerning him for more years than he had possessed, and for a greater duty than he had acknowledged by his oath, notwithstanding they offered to restrict it to the precise years and quantity mentioned in his oath.

Of this decreet we had also raised a reduction; and which being called by the order of the roll, and insisting that the defender might take a day to produce the decreet, it was Alleged, they would take no day, because it being a decreet in foro contradictorio, the defender is not bound to produce it, though he hath extracted it, but the pursuer is bound to extract it when it is a decreet parte comparente before the Lords, and to produce it himself. But after the Lords reponed John Haddow, we had no use for our reduction.

Advocates' MS. No. 665, folio 309.